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International Law

The Unfinished agenda of 2016’ Global Politics and expectations of 2017




It is a contested argument. However, we all forget that leaving problems to escalate from one year to the next year not only leaves the wound open, but makes it harder to close, particularly in regard to influencing the situation. Though the international players observe these developments as grave concerns, their experiences can only offer a familiar voice asking the stakeholders to remain calm. The Israeli-Palestine conflict, civil wars throughout Africa, the Kashmir issue, Tamil’s status in the United Sri Lanka, belligerent North Korea, Iran’s nuclear potential, governmental issues across Latin America, the worldwide war on terror, the shift of the old world order in the shadow of new rising powers, the impact of the Arab Spring, new tensions between the US and Russia, the Syrian refugee crisis, pandemic diseases, climate change, stalled WTO negotiations and many more keep the United Nations (UN) permanently engaged. Which issues did the international community consider more important than others and which remained untouched during the year 2016 will be discussed here.

This year the Israel-Palestine issue did not received more space in the agenda of the UN but was always present at the table. The recent abstention of the United States in the UNSC censuring the illegal Israeli settlements show that the long-standing approach of America in favor of Israel now is tilting. Israeli Prime Minister Benjamin Netanyahu was blindsided by this new shift, and spectators continue to contemplate why the US has broken its uncontested support for Israel and what the expected results might be.

No one dare talk of the Kashmir issue boldly, as it fuels the bitter relations between India and Pakistan. The reason for the estranged relations between India and Pakistan begins six decades ago at the partition of the Hindu-Muslim divide. Pakistan invaded Kashmir and was the aggressor in the situation. With no question surrounding India’s status as one of the new rising powers in the international system, seeking major influence within inter-governmental and organisational bodies is tensely anticipated. It seem Pakistan has not realised the reality of this issue, it can cry foul but it will not receive any support from any major Western players. This issue was not considered seriously by the international community for two reasons. First, India maintains that Kashmir is the internal matter of India and will only be resolved bilaterally with Pakistan. It claims that there would be no space for a third party. Second, India is the worlds largest democracy with a fast growing economy, as well as the largest importer of military procurements. India’s growth can be attributed to its friendly relations with major powers in the international system.

The agreement between Colombia and FARC would have ended one of the world’s longest, continuous conflicts in Latin American and set a precedent for resolving any deadly conflicts across the continent. However, Africa remains a continent plagued by suffering, and does not intend to copy the model and attempt to end any of their internal conflicts. Poverty, malnutrition, water insecurity and chronic diseases are threatening Africa’s communities. In addition, other issues like Boko Haram’s insurgency in northeastern Nigeria, ethnic violence in the divided Sudan, and Congo, Somalia, Mali and Algeria registered even more deaths from political violence in the year 2016. Recent reports say that Robert Mugabe, the 92 year old President of the failed state Zimbabwe will be in the race again to retain his presidential power. The UN and the US are concerned about the burgeoning issues across Africa but are unable to do carry out any action because of their focus on eradicating ISIS in the Middle East.

In Sri Lanka, the conflict between the majority of Singhalese and the minority Tamils and taking forward the new constitution of united Sri Lanka will be a burning domestic matter. The post-LTTE regime and the continuous presence of Sri Lanka’s military throughout war-torn regions makes the deprived minority people more vulnerable and poses a serious threat for their peaceful living. Further, the government’s concern to monitor and if needed thwart the regrouping of the LTTE would be understandable but the internal security matters should not endanger to its citizens. The crucial factor here would be an investigation by the UN body regarding the Human Rights violations, torture and unlawful killings during the final seven years of the war, and to apply pressure to the Sri Lankan government for further actions and a follow up. However, the resistance of Colombo in addition to the rivalry between India and China granted free bail to Sri Lanka in Indian Ocean security challenges.

At the Paris accord on Climate Change at the end of 2015 and the follow up in 2016 by the UN, the US sought a Chinese pledge. This was in order to give a chance to the citizens of the world and for the biggest polluters to guarantee change in the face of the real threat of global warming as well as the responsibility to save it. So far, “120 Parties have ratified of 197 Parties to the Convention” ( thus the Paris Agreement was fully supported and entered into force in 2016, received as a very positive message to all environmentalists, climate change scientists and anyone affected/worried about the consequences of pollution.

The deadlock of the WTO Doha Round talks means there will not be negotiations in 2016 due to the inability of the international community. This is not good news to the developing world, as this is the only rules based organisation which gives support to small states. The deadlock must be reversed to give an opportunity to every human being who have the right to live in this world equally. The failure of the WTO in boosting regional trade pacts would be a loss for developing nations. In 2016 the WTO was able to receive the required attention but will get the right consideration in 2017 if the Director General of the WTO, along with the new US administration, the EU, China, India, Russia, Brazil, South Africa and other major players collectively stand to provide a chance for future negotiations.

The second Iraq war, the repercussions of the ‘Arab Spring’ followed by civil war across North Africa and the Middle East has caused serious damage and disasters to humanity. The struggle to wipe out ISIS in Iraq and Syria fuelled the biggest refugee crisis the world has witnessed since World War II. The continuous clash between the US and Russia over Syria ceasefires and the battle for Mosul and Aleppo has devastated the country without any immediate redemption. Though the international community was concerned, the ego’s and power struggle between the US and Russia was the main reason behind the delay to bring all parties for ceasefire discussions.

The threat of nuclear weapons falling into the hands of deadly terrorist groups and proliferation of nuclear material within failing states is a serious issue which hurts everyone in the world. Last year alone, various tests were exercised by North Korea, and though its weapons capacity is contested the main point is that the tests were successful. North Korea is demonstrating its nuclear might with the protective shadow of China. No one is willing to address and/or challenge China’s influence, powers and relationships in the region. Why is this?

The pact with Iran surrounding nuclear material was a necessity as there was no alternatives that pursued the right direction. Which way this option proceeds lies in the hands of the new US president. Hopefully, Iran and its people will enjoy the outcome of the pact and it can be viewed as a positive message. With more investments predicted for Iran, the international community should keep a watchful eye on Iran incase these are viewed as funding opportunities to strengthen their nuclear option in the future. To counteract this, Iran should be guaranteed a security shield to protect them from another nuclear state or threat in their region.

US-Cuba relations

After imposing sanctions on Russia as punishment for the Crimea issue, tensions between the US and Russia have been renewed and registered at a new level. The US administration should not forget that pushing Russia towards the East is a big challenge in that it has the possibility of strengthening the relationship with China. Hacking the US election system, President Barak Obama’s reactions to expelling 34 Russian diplomats from the US, as well as Trump’s response are sending dangerous messages. Instead of retaliating, Russian President Vladimir Putin’s silence troubled every one. Which way the US will move and why remains to seen. The important aspect of this and the biggest worry would be the future and risks of cyber-security and the impact it can have on the international stage.

Silent issues are appearing quickly, particularly after the announcement of Trumps election win. His phone call with the Taiwanese President Tsai Ing-disturbed and shocked China. Trump’s olive branch towards Putin and open talks with Ing-wen will be a gateway to isolating China but also poses serious challenges to the new UN Secretary-General.

Ban Ki-Moon the Secretary-General of the UN is now completing his 10-year tenure. Now, the new Secretary-General Antonio Guterres has “pledged to make 2017 a year for peace.” He has experience in the UN as a High Commissioner for Refugees and as prime minister of Portugal. What the international media and diplomats have commented about the incoming secretary general are positive and widely endorse him as the right choice for this post. Let us hope that he will oversee all the important issues, give immediate attention to deadly issues and will work along with the international community to make a consensus in resolving conflicts and bring peace to this world with a stern hand.

International relations and its issues can not be limited or restricted. They are constantly changing and evolving, and the international community needs to be more resilient and adaptive in order to function at its highest capacity.

The UN has the institutional framework which, empowered by international law and the Geneva Conventions, can take the lead in finding solutions for any conflicts across the world. However, every IR scholar knows that without the backing of the US the UN’s stance would be powerless. Moreover, to carry forward the any proactive UN role the United States support can not be compromised. With unexpected events taking place in the US, president-elect Donald Trump would be the first leader in the history of US politics to be openly disliked by state leaders and his own citizens. With organised rallies, the appearance of posters stating ‘He is not my President’ and a number of debates across social media, serious questions are being about Trump’s presidency.

Though President Barak Obama was praised for his orator-ship, he could only impact minimum issues and some critics state he did not reach his expectations in the year 2016. However, his strong stance on non-intervention, withdrawal of the US military from the Middle East will stand strongly for him in the future. At the same time, the new president-elect of the US is already impacting the world stronger than ever. Russia is happy about the election results as Trump is batting for Russia. Would this mean that the new US policy will attempt to dismantle Russia-China relations? China is not happy about the new US president-elect. India has no opinion but there are expectations for closer ties with the US because of Prime Minister Modi and Trump’s shared policy disarray and inconstant personality traits.

The more international issues are in rise the intervention of the US president with rational act would be crucial for resolving conflicts. So far, Trump has not shown any maturity in his statements on global affairs. Contested statements in his name make the global stage more confusing and reduce his image as a trustworthy global leader.

Will the important global issues that remain unresolved or not a high priority in the year 2016 receive attention from the new US president in the New Year 2017? This has no immediate answer. The UN and the US are strongly expected to lead the way for useful solutions to the global problems. We have crossed the year 2016 with some achievements but not with great disappointments. Hence, we have hope that the international community will fight to save humanity from the natural and manmade disasters.

Antony Clement is a Senior Editor (Asia-Pacific), Modern Diplomacy an online journal. He is a researcher in Indian Foreign Policy. He consults on academic development and he is currently working on two books - “Discover your Talents” and “Diplomacy in Tough Times”. His research centres on India’s diplomacy & foreign policy and extends to domestic politics, economic policy, security issues, and international security matters, including India’s relations with the US, the BRICS nations, the EU and Australia.

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International Law

Born To Rule: Sovereignty in International Law

H.E. Datu Matthew Pajares Yngson



When you ask those born in this age of the internet about the concept of royalty or monarchism, you should expect mixed answers. Anything from the latest Disney movie to the fairytales of the British royal family seem to be the accepted definition. The world has forgotten that just about a century ago, most of human civilization was governed by monarchies.

From the moment of birth, a monarch was taught to be a leader for the rest of his or her life. Today, many members of these ancient families have been reduced to footnotes in history. We know of eminent persons such as Dom Duarte Pio, the “king” of Portugal; Constantine II, the “king” of Greece; and Simeon II, the “king” of Bulgaria who do not administer their countries but retain certain rights according to international law. Though they lost all the pomp and circumstance, have they also lost their sovereign right to rule?

The Definition of Sovereignty

Sovereignty is one of the most important concepts of political science and international law. Many believe that no other term has given rise to more discussion and confusion than the word “sovereignty.” It is used in a variety of ways which are not clearly distinguished from each other. The word “sovereignty” is derived from the Latin word “superanus” which means “supreme power”.

Definitions of sovereignty are numerous and varied. French jurist and political philosopher Jean Bodin was the first Western writer to develop a systematic doctrine of sovereignty. He defines it as “the supreme power over citizens and subjects, unrestrained by law”. Dutch humanist, diplomat, lawyer, theologian and jurist Hugo Grotius, defines sovereignty as “the supreme political power vested in him whose acts are not subject to any other and whose will cannot be overridden”.

The ultimate authority to rule within a polity is known and commonly accepted at present times as a definition of sovereignty. Historically, the ultimate authority within a polity was vested in the person of the sovereign, a monarch whose rule was granted by divine right or local custom, and often by a good deal of force.

The Concepts of Sovereignty

Things were quite simple and defined up until the Middle Ages. God was sovereign, and that is all that mattered. In the Book of Psalms, Psalm 24:1 writes that “the earth is the Lord’s, and the fulness thereof; the world, and they that dwell therein” offered soothingly emphatic confirmation of this. Few temporal leaders would dare usurp God’s position at the top of the

body politic. This gave the Church a central place and enormous influence in all affairs of the state. Eventually, God was good enough to delegate. He kept things simple by investing sovereignty  in  monarchs.  Now  they,  and  they alone,  had  absolute power  within  their territories. And they were at pains to stress that this monopoly of sovereignty was a “divine right.” Laws may now have emanated from human words and deeds, but for anyone thinking of causing trouble, such laws were still seen to be the expression of God’s will.

Similarly, the Quran affirms that the term “Sultan” meant moral or spiritual authority. It was used later by Muslim sovereigns to represent political and governmental power. This was written in the Surah ar-Rahman 55:33 which roughly states that “O assembly of the jinn and the human! If you have power to penetrate through the diametrical zones of the heavens and the earth, then penetrate (go through them)! You cannot penetrate through them except with a Sultan (authority)!”

As the “Age of Reason” or the Enlightenment took Europe by storm, the world of absolutes began to slip away. The concept of sovereignty started to mutate and increasingly became more complex. Ideas of popular will, individual rights and “parliamentary sovereignty” slowly gained a foothold across the region. Things were no longer simple.

What is de jure and de facto sovereignty?

Sovereignty being a query of fact, a contrast is sometimes made between de jure and de facto sovereignty. The de jure sovereign is the legal sovereign and the de facto sovereign, is obeyed by the people whether he has a legal status or not. A de facto sovereignty may rest purely on physical force, where de jure sovereignty has the legal right to command obedience.

The distinction between the two comes out abruptly in times of revolution or usurpation. Some developments mean a mere change in the personnel or organization of government, while others result in a complete destruction of the old legal sovereign and the establishment of a new one.

How long does a de jure sovereignty last?

Under the principles of public international law, a ruler who is deprived of the government of his territory by either invaders or revolutionaries remains the legitimate de jure sovereign of that country while the de facto regime set up by the revolutionaries or invaders is considered a “usurper”, both constitutionally and internationally.

The question of how long a de jure sovereign may continue in this status is answered by the book “Synopsis of the Law of Nations” written by Johann Wolfgang Textor, which states that de jure sovereigns retain their status as long as they don’t surrender their sovereignty to the de facto government. A dispossessed royal family may keep their claims alive by filing diplomatic protests against the usurpers as required by International Law. That claim can only be abandoned when the protests are stopped. The failure of royal heirs to prosecute or assert their claims may disqualify them from any consideration to the inheritance. This corresponds

to Emmerich de Vattel’s legal treatise “The Law of Nations: Or, Principles of the Law of Nature Applied to the Conduct and Affairs of Nations and Sovereigns”, which states that only when such protests  cease does  a prescription  arise  against  the de jure  rights of a legitimate claimant. When this occurs, the sovereignty passes back to God, who gave it or may be passed in some cases to the de facto government which at that point would be legitimized and will acquire the full de jure rights of the former sovereign.

Such  legitimate  claimants  are  de  jure  sovereigns  and,  as  such,  remain  head  of  the government-in-exile of their usurped territory.

Public international law towards the legal validity of objections against the usurpation of sovereignty applies to both republic and monarchical states. Prof. Stephen P. Kerr in his academic paper entitled “Dynastic Law” states that “The United States of America refused to recognize the 1939 Soviet usurpation of the three Baltic Republics of Estonia, Latvia, and Lithuania. This facilitated the maintenance of Governments-in-Exile of the Baltic Republics and the maintenance of embassies in Washington, D.C., which persisted through the Cold War Era until these countries managed to recover their independence. Accordingly, matters pertaining to  de  jure  Governments-in-Exile  are  matters  of  public  international  law.  The  de  jure sovereignty of a state which has been usurped by a foreign conqueror is not extinguished by such usurpation but survives as long as such sovereignty is kept alive by competent diplomatic protests.”


Non-reigning or dispossessed monarchs, who, as de jure sovereigns, may continue to exercise their sovereignty. This conforms with public international law fully taking into consideration that they do not surrender their sovereignty to the de facto government. This is legally supported for as long as such sovereignty is kept constantly affirmed with strong diplomatic campaigns.

Resulting from this, any monarch that has been relieved of his power yet continues to perform his birth right across the globe does not lose this immutable sovereignty.

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International Law




Authors: Manini Syali and Vinayak Jhamb*







Common Heritage of Mankind and Healthcare


Concrete and Express Recognition of Right to Health


Unprecedented Times call for Unprecedented measures






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International Law

Curious Case Of Nirbhaya And International Court Of Justice



On December 16th, 2012, a 23year old physiotherapy intern known as Nirbhaya was gang-raped and heinously murdered in a moving bus in Delhi, she died subsequently in a hospital in Singapore. The aftermath of the Nirbhaya incident witnessed widespread public outcry, which resulted in the amendments to various provisions of the Indian criminal law both substantive and procedural. Despite the radical reform in the criminal law jurisprudence, the convicts remain defiant and have recently moved the International Court of Justice (ICJ) seeking a stay

On 16th March2020, the Supreme Court of India (SCI) rejected the plea of one of the convicts in the Nirbhaya gang-rape and murder case. The convicts were slated to be hanged on 20th March 2020, following which the convicts have written a letter to the ICJ seeking an urgent hearing to prevent “unlawful execution”. The letter reads as:

“I write to you to request your support and help, in whatever form, to prevent this barbaric and inhumane punishment from being inflicted upon convicts, the death penalty has no relevance in a progressive and modern International era. Inflicting it upon prisoners, who belong to the economically most vulnerable section of society will only serve to take out international forum several steps back.”

Notwithstanding this plea to the ICJ, the convicts were hanged on 20th March. This brief write-up intends to unravel the position of individuals in the ICJ and the progressive mechanism of individual complaint mechanism under international human rights law against the State.

Access to Individual under ICJ

The ICJ is the principal judicial organ of the United Nations(UN) that resolves disputes between States. The issue in the Nirbhaya case with regard to the ICJ is whether individuals can approach the ICJ claiming remedies against the State, the subject matter of which is purely domestic or in short does the ICJ have jurisdiction to entertain the claim made by the convicts. According to the former Supreme Court judge of India BN Srikrishna, the ICJ has no jurisdiction to order a stay; his point is the ICJ cannot act as a court of appeal, this is true because the jurisdiction of the ICJ is based on the consent between States and not individual, this is also reflected in Article 34 of the Statute of the ICJ (ICJ Statute). Further, the entire judicial process in the Nirbhaya case was proper, ie. hearing from the trial court to the Supreme Court; the convicts were provided several opportunities to file review and curative petitions. The larger question that needs to be addressed is the relationship between individuals in the ICJ. Firstly, over the years several judges and scholars of international law have argued for amending Article 34 of ICJ Statute to include individuals; moreover ,the Advisory Committee of Jurist, who drafted the PCIJ Statute ( Predecessor to the ICJ Statute) deliberated in detail the issue of locus standi; unfortunately, lack of support from majority saw the idea being dropped. Secondly, the famous dictums in the PCIJ and ICJ refer to the fact that injury to the individual constitutes an injury to the States, as asserted in the 2007 Diallo (preliminary Objection) diplomatic protection of the aliens extends to the protection of human rights; however, the extent and scope of these human rights are very much limited. Thirdly, according to Hersch Lauterpacht, the original purpose of the ICJ was to be a court of International Law, rather than a human rights court; thus individuals approaching the ICJ demanding Justice would require to circumvent the original intention of the drafters. Fourthly, post world war 1  witnessed the formulation several multilateral treaties to safeguard the rights of minorities, the PCIJ and ICJ through its advisory opinions had touched upon these treaties in the context of individual rights; however, the PCIJ and ICJ consistently refrained from invoking presumption against individuals rights and duties. Fifthly, the sole decision in the ICJ that has some proximity to the Nirbhaya case is the LaGrand case, in which the ICJ affirmed that individual might possess direct rights under treaties, however, in the La Grand case, the ICJ did not equate the right of consular access as human rights and thus adopting a strict state-centric interpretation. Moreover, the Judgement acknowledges the fact that the individuals approaching the ICJ could invoke rights through the national State.

Sixthly, in international law, the concept of state immunity has trumped human rights or individual rights, in the Arrest warrant case and the Jurisdictional immunities case the ICJ firmly establishes the fact that immunity overrides international crimes, although the backdrop of these cases significantly differs from Nirbhaya, the undisputed fact that remains is State is protected under the ambit of immunity. Taking all these factors into account, it was on the expected lines that the convicts in the Nirbhaya case would be unsuccessful in espousing their point of view in the ICJ via a letter; moreover, the jurisprudence of ICJ in terms of cases akin Nirbhaya are none; therefore the ICJ will continue its trend of ‘State-Only’ conception of international legal personality.

Individual Complaint Mechanism under International Human Rights Law

The Nirbhaya convicts rather than taking recourse to the ICJ could have sought remedies under individual complaint mechanism of Individual Covenant on Civil and Political Rights (ICCPR), however this would also be a futile exercise considering the fact that, India is not a signatory to the Optional Protocol of ICCPR.The ICCPR under Article 28 provides for the establishment of the Human Rights Committee (HRC) consisting of 18 members. The committee meets three times per year; the State party must submit a report to the HRC dealing with the implementation of the ICCPR’s provisions, after the initial report a State has to submit periodic reports, based on which the committee prepares its concluding observations. Further, the HRC is competent to entertain an individual complaint for alleged violation of an individual’s rights under ICCPR. The HRC also provides general comments to clarify the contents of ICCPR’S provisions. Assuming that India is a signatory to the optional protocol of ICCPR,TheNirbhaya convicts hypothetically speaking could have approached the HRC by taking recourse to Article 6(2) of ICCPR which reads:

“In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes by the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out according to a final judgement rendered by a competent court”.

Assuming that the convicts approached the HRC, literal interpretation of the above provision points out that, the crime of rape and murder falls under the ambit of ‘most serious crimes’, however, India does not have codified list of crimes which constitutes ‘most serious crimes’, it is upon the courts in India to determine the same on a case to case basis, in short, it is a matter of pure judicial discretion. The general comment no.36 on Article 6 of ICCPR on the right to life in paragraph 16 implicitly recognise that countries which have not abolished the death penalty, to lay out clear and stringent criteria for retaining capital punishment; moreover the HRC in August 2019 identified the list of issues before submission of the fourth periodic report of India, one of the issue being the elaboration on any comprehensive review of the relevant legislation to ensure that the death penalty may be imposed only for the most severe crime and indicate whether the imposition of the death penalty is mandatory for certain crimes. The legislature in India requires to framean enumerative list of ‘most serious crimes’, which fits the death penalty template, instead of passing the buck to the judiciary.  Despite the cacophony surrounding the Nirbhaya verdict, justice was meted out to the victim on 20th March with the hanging of the convicts.

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